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Since the New York State judge Juan Merchan fined and scolded Donald Trump earlier this month for violating a gag order in his criminal trial, the former president has been on … well, maybe not his best behavior, but certainly better behavior. For a couple of weeks, he avoided statements that might be construed as violating the order, before he started to test the boundaries again.
The order is intended to protect the sanctity of the case, in part by banning Trump from attacking witnesses, as well as the families of prosecutors and of the judge. But Merchan himself is not protected under the order, as Trump knows. Speaking outside of court yesterday, after the defense rested its case, he blasted Merchan, who was born in Colombia
“The judge hates Donald Trump,” Trump said, employing a Bob Dole–like third person. “Just take a look. Take a look at him. Take a look at where he comes from. He can’t stand Donald Trump. He’s doing everything in his power.”
This isn’t banned under the gag order, but it does undermine the legitimacy of the courts. It is also appalling in a way that Trump’s behavior so often and so casually is that it risks being overlooked. Trump implies that Merchan must hate him because Merchan is Latino. Put differently, Trump is arguing that because he, Trump, has made racist comments about Latinos, any individual Latino must hate him. (Never mind that Trump has courted and gained ground among Latino voters.) Or perhaps it’s another example of his frequent projection: If Trump is prejudiced, he assumes that other people must be prejudiced in the same way.
This is not the first time he’s made such a remark about a judge. In 2016, Trump insinuated bias on the part of Gonzalo Curiel, a federal judge who was overseeing a class-action suit alleging that the so-called Trump University was fraudulent. (Trump ultimately settled the case for $25 million.) “What happens is the judge, who happens to be, we believe, Mexican, which is great. I think that’s fine,” Trump said. When pressed by CNN’s Jake Tapper, Trump refused to deny that he was saying a Mexican judge couldn’t fairly hear his case.
More than simple bigotry, Trump’s remarks about Merchan are an attack on the bedrock of the American justice system, part of his assault on the rule of law itself. The principles of the courts are that judges and juries do their best to set aside biases, and that the adversarial system’s checks and balances ensure fair results more often than not. By suggesting that a judge is irreparably biased simply by virtue of where he was born, Trump seeks to undermine the whole system. He also seeks to cast doubt on the very idea of naturalized citizenship.
Trump’s approach also creates a perverse incentive: Any defendant who attacked a judge (or prosecutor’s) ethnicity or other background could unilaterally have them removed. Of course, every defendant would love to pick a judge who they expect will be reflexively sympathetic to them, but that wouldn’t be fair. (Nonetheless, that may be exactly what is happening in another of Trump’s criminal cases, as a judge he appointed to the federal bench appears to be hobbling his prosecution.)
There is one, more charitable interpretation of Trump’s demand that we “take a look at where he comes from.” Merchan arrived in the United States when he was 6 years old and settled in Queens, New York—the same borough of New York City where the former president was born and raised. Merchan is from Queens as much as Trump is. If Trump means that New Yorkers don’t like him very much, he’s got a point.
